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Texas Criminal Procedure
South Texas College of Law Houston
Finegan, Sharon G.

Texas Criminal Procedure Outline

Spring 2011—Professor finegan

Introduction & Overview

A. Texas Quirky Laws:

a. Can potentially be arrested for every offense in penal code except speeding & open container

b. Child under the age of 10 cannot commit a crime in TX

c. Multiple crimes tried in same trial, sentences run concurrently (on top of each other); if tried separately, run consecutively

d. TX govt code: ct. can suspend qualification for jury service if not enough people in county can read & write

e. TCCP, state leg. are privileged from arrest from misdemeanors while leg. is in session

f. 2.15 Police officer can summon person to assist them, if person refuses to comply, that person can be prosecuted

B. Criminal Justice Process:

a. Investigation (1st—is it an arrestable offense? 2nd—arrest w/ or w/o warrant?)

b. Arrest

c. Search

d. Intake

e. Preliminary initial appearance (15.17 hearing, magistratizing the D)

f. Further investigation

g. Charging process

i. Misdemeanor: D charged by an information and complaint

ii. Felony: D is charged by an indictment

1. Examining trial: only for felonies; right to ET cut off once indictment issued

2. Grand jury indictment

h. Arraignment

i. Guilty plea or trial

i. Pleas: guilty, not guilty, no contest

ii. Guilty plea to felony—TX requires substantiating evid (not required for misdemeanors)

iii. Deferred adjudication: D pleads guilty, judge doesn’t accept guilty plea (never convicted), give period of years—if you stay out of trouble, never convicted, if you do commit another crime w/in period, state only needs to prove by preponderance of evid & your sentenced to max sentence for initial plea of guilty

iv. Trial on guilt

v. Trial on punishment

j. Motions for new trial

k. Appeal to court of appeals

i. Right to automatic review by court of appeals in your region (1st & 14th Ct. of appeals)

1. Exception: death penalty cases go automatically to TX Ct. of Crim. Appeals (highest court)

a. Discretionary review, except for death penalty cases (must hear)

ii. Habeas petitions (1st in state then in fed courts)

l. Clemency proceedings (maj. of TX Board of Pardons votes in order for governor to pardon D)

C. Art. 2.01. Duties of District Attorneys: primary duty not to convict, but to see that justice is done

D. Art. 2.02. Duties of County Attorneys:

E. Art. 4.03. Courts of Appeals: have appellate J in all criminal cases co-extensive w/ limits of their district, except in cases where death penalty has been assessed

F. Art. 4.04. Court of Criminal Appeals: power and authority to grant/issue writs; final appellate & review J in crim cases in TX; determinations are final

a. Death penalty cases: appeal of all cases in which death penalty is assessed go directly to this ct.

b. Discretionary review: may review any other decision of court of appeals in crim case; discretionary review is NOT a matter of right, but of sound judicial discretion

G. Art. 4.05. Jurisdiction of District Courts: J over felonies and certain misdemeanors; if case has felony & misdemeanor, both tried in district court

H. Art. 4.06. When Felony Includes Misdemeanor: when hearing a felony, court must hear & determine the case as to any other crime included in the indictment, whether it’s a felony or misdemeanor

I. Art. 4.07. J of County Courts: J over Class A and B misdemeanors; appellate J over municipal and JOP courts

J. Art. 4.08. Appellate J of County Courts: appellate J in cases of which justice courts and other inferior courts have original J

K. Art. 4.11. J of Justice Courts: class C misdemeanors; in Harris county, mostly traffic offenses & fine only offenses; can punish by fine or sanction or take away license

L. Art. 4.14. J of Municipal Courts: J over violations of city ordinances & class C misdemeanors; Harris County, mostly dealing w/ traffic offenses

a. J in forfeiture & final judgment of all bail bonds & personal bonds in cases in which court has J

b. Municipality w/ 1.9 million or more people and another municipality next to it may enter agreement providing concurrent J for municipal courts of either J for all crim cases arising from offenses under state law that are:

i. Committed on boundary of those municipalities or w/in 200 yards of that boundary, and

ii. Punishable by fine only

M. Art. 4.17. Transfer of Certain Misdemeanors: if not guilty plea to misdemeanor punishable by jail entered in county ct. of judge who’s not licensed attorney, judge may transfer case to district ct. w/ J or county ct. at law in county presided over by judge who’s licensed attorney; judge may make transfer on his own, prosecutor’s or defense’s motion; however, NO case can be transferred to district ct. w/o transferee judge’s written consent

N. Art. 12.01. Felonies: felony indictments may be presented w/in time limits and not afterward: (SOL) (don’t need to memorize, just have general idea)

a. No Limitation: Murder, Manslaughter, certain sexual assaults

b. 10 years from date of offense: theft by pers. rep. of estate, theft by public servant of govt. prop., forgery, injury to elderly or disabled person punishable as 1st degree felony, other sexual assault, arson

c. 7 years: money laundering, misappropriating funds, etc.

d. 5 years: theft, robbery, kidnapping, burglary, abandoning or endangering a child

e. If victim < 17 when offense committed, 20 yrs from victim’s 18th b-day: sexual performance by child, aggravated kidnapping,

f. 10 years from victim’s 18th b-day:

g. 3 years from date of commission of the offense: all other felonies

O. Art. 12.02. Misdemeanors: 2 year SOL for all classes

P. Know felonies & misdemeanors are graduated & different levels subject to different punishment & fines; punishment can be enhanced based on prior convictions (don’t need to know details of sentence/fine)

Q. TPC Sec. 12.03. Classification of Misdemeanors: A, B, or C; if misdemeanor & punishment not specified, Class C; conviction of class C—no legal disability or disadvantage

R. TPC Sec. 12.03. Classification of Felonies: capital, 1st degree, 2nd degree, 3rd degree, state jail; felony w/o designation=state jail

S. TPC Sec. 12.21. Class A Misdemeanor: fine ≤ $4K, jail ≤ 1 yr, or both

T. TPC Sec. 12.22. Class B Misdemeanor: fine ≤ $2K, jail ≤ 180 days, or both

U. TPC Sec. 12.23. Class C Misdemeanor: fine ≤ $500

V. TPC Sec. 12.31. Capital Felony: if state seeks DP—life w/o parole or death penalty; o’wise, life (if transferred under Fam Code) or life w/o parole; if DP sought, must inform prospective jurors that DP or LWOP mandatory on conviction; o’wise, must inform prospective jurors that state isn’t seeking DP and that life (if transfe

. Statutes:

i. 15.01 Warrant of Arrest: written order from magistrate directed at peace officer or other person specifically named, commanding him to take the body of the person accused of an offense, to be dealt w/ according to law

ii. 15.02. Requisites of Warrant: Issues in the name of “The State of Texas”, AND sufficient, w/o regard to form, if it satisfies the following requirements:

1. Name of arrestee, if known; if unknown, reasonably definite description

2. State that person is accused of some offense against laws of state, name the offense

3. Signed by magistrate & his office be named in body of warrant or w/ signature

iii. 15.03. Magistrate May Issue Warrant or Summons: may issue warrant or summons of arrest when authorized to verbally order arrest, person takes oath before magistrate, code authorizes issuance; summons can be issued whenever warrant may be issued;

1. Summons—same form as warrant except must summon D to appear before magistrate at specific time; this doesn’t authorize arrest, actual warrant is required for arrest

2. Summons must be served on D by: personal delivery or leaving it w/ some1 of suitable age at D’s house OR mailing it

3. If D fails to appear in response to summons, warrant shall be issued

iv. 15.04. Complaint: affidavit made before magistrate that charges commission of offense

v. 15.05 Requisites of Complaint: name of accused (describe if unknown), show that accused committed some offense or that affiant has good reason to believe and does believe that accused committed such offense, time & place of commission of offense, AND, must be signed by affiant

vi. 15.06. Warrant Extends to Every Other Part of State: warrant issued by any county or district clerk OR magistrate extends to any county & officer to whom warrant was issued can execute it in any county of state

vii. 15.07. Warrant Issued by Other Magistrate: warrant issued by major of incorp. City or town cannot be executed in another county other than 1 which issued it, except:

1. If signed & dated by judge, then can execute it anywhere in state, OR

2. If signed & dated by magistrate in county where accused is found, can be executed in such county

viii. 15.08. Warrant May be Forwarded: warrant may be transmitted by fax or other electronic means; if issued by magistrate in 15.06, peace officer must execute it w/o delay; if issued by someone other than person in 15.06, peace officer must bring it to magistrate in his county who shall endorse it

ix. 15.16. How Warrant is Executed: w/o unnecessary delay, AO must take D before issuing or named magistrate if in same county where D arrested; if in another county, D must be taken before some magistrate in arresting county w/o unreasonable delay